In Episode 165, Kelly Twigger discusses the crucial question of whether a party can redact text messages for relevance absent an agreement between the parties and review a key discussion on how text messages have expanded as evidence rapidly in We the Protesters, Inc. v. Sinyangwe.
Introduction
Hi and welcome to our Case of the Week segment on our podcast. My name is Kelly Twigger. I am the Principal at ESI Attorneys, a law firm for ediscovery and information law, and the CEO and founder at eDiscovery Assistant, where we take the insights from our practice and provide a knowledge platform for you to leverage the power of Electronically Stored Information (ESI). Thanks so much for joining me today.
Before we get started, I wanted to take a minute and acknowledge the absolute devastation that is happening in the Los Angeles area. We are no stranger to forest fires here in Colorado and my heart goes out to all of those who have lost their homes and loved ones, and also to those living in the area who are battling the conditions that such fires create. Please consider donating if you can to help folks rebuild their homes and their lives and thank you in advance for your generosity. Here are a few resources to consider:
One quick announcement about the upcoming University of Florida eDiscovery Conference, to be held virtually and in person on February 12-13 2025, so coming up in just a month. This is 16+ CLE hours of practical education that includes ethics, technology, from the best in the business in ediscovery, and it is free to attend virtually. Please mark your calendars and get registered. We’ll include that link both in the show notes and in the comments. I’ve had the pleasure of participating on the planning committee for the UF eDiscovery Conference for the last 11 years and we work, starting in May, to put together an amazing program about the current issues facing us in electronic discovery. You can view the full agenda at ufediscoveryconference.com and, as I mentioned, we’ll drop a link to register.
Now back to our show.
Our goal here on the Case of the Week segment is to identify practice points for you in planning for, negotiating and requesting ESI in discovery by reviewing recent decisions from the courts. Our goal is to help you issue spot, to recognize the issues that you need to focus on in ediscovery before you need them and to help you identify the right language to use when you need it.
This week’s decision is particularly important because it addresses the age-old question that we had with paper and now we have with every individual source of ESI — Can a producing party redact non-responsive information before producing it? Today’s decision deals with that messy issue of redaction in text messages, and it’s a key one because such a high percentage of cases now involve data from mobile devices, and specifically text messages. What’s also key that we’ll see here from Magistrate Judge Stein’s ruling is that, even though how people communicate via text is radically different from how they communicate in email, generally parties cannot redact for non-responsiveness unless the parties agree to it in writing.
Let’s dive into this week’s very well-written and thoughtful decision from Magistrate Judge Gary Stein. This one comes to us from the matter titled We the Protesters, Inc. v. Sinyangwe. This decision is from December 18, 2024, so just under a month ago, and it will be included in our Case Law Report for 2024 that will be distributed at the University of Florida eDiscovery Conference. You’ll also be able to access that report if you’re signed up for our newsletter, and if you’re not signed up for the newsletter, you can do that at ediscoveryassistant.com/blog. Signing up for the blog will also sign you up for our weekly newsletter.
Today’s decision can be viewed via the link in the show notes or in the comments. It always drives me crazy when an article or podcast references a case and then cites the docket number, which you can never find because the text of that decision sits behind a firewall. So, at eDiscovery Assistant, we decided to make every case in our curated database available at a public link for you to review. We want you to read the decisions and learn how to do ediscovery better and more effectively for your clients, so check out the link. This is a shorter decision but definitely worth a read. Magistrate Judge Stein has nine decisions in our eDiscovery Assistant database. As always, we’ve tagged each of the decisions, including this one, with our proprietary issue tagging structure in eDiscovery Assistant, which allows our users to find decisions without relying on complicated search strings. This week’s issues include failure to produce, ESI protocol, redaction, cooperation of counsel, text messages and email threading.
Facts and Analysis
What are the facts of this case? Well, the facts are pretty short, so we’re going to combine our facts and analysis discussion today, and so these are really simple.
The parties agreed to produce text messages in discovery that they would use search terms to identify responsive texts and that all messages in the same chain on the same day as a responsive search term appeared would be produced “regardless of whether the initial text message that hit on the search term was responsive and relevant”. Now, that last piece, “regardless of relevance”, is a bit foreshadowing for you literary buffs out there like me.
With that agreement in place, the plaintiffs produced thousands of text message strings, many of which were redacted for relevance. Defendants produced hundreds of text message strings and did not redact them for relevance. Defendants then objected to plaintiff’s production, arguing that the plaintiffs were not entitled to redact for relevance, and this motion to compel ensued. Now what I love here is Magistrate Judge Stein’s opening quote right at the top of this decision: “Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery.” This is a theme that we’ve seen here and which amplifies our message that I routinely have for my clients and I talk about through the eDiscovery Assistant platform as well as here on Case of the Week, and it’s one that every litigator needs to understand.
eDiscovery is hard. It’s a constantly moving target every time the technology we use to create, store, send and receive ESI changes. It’s one that you need to figure out for your matters and for the sources of ESI that are involved in the cases you’re handling. Every single source of ESI has to be considered and handled differently. Now, what do I mean by a source of ESI? Because I use that language all the time. Recently, one of my listeners reached out and said, hey, it’d be great if you could explain some of these terms that you use. So we’ll try to start doing more of that.
A source of ESI means the data that is created by an application that is discoverable. So, the sources of ESI that we deal with routinely include email, databases, text messages, each individual social media platform, Slack, Teams and so many others. I mean we can go on and on and on – the list is very exponential. Google mail, Yahoo mail, any sort of web-based mail. Every single platform can have one or more data or file types that come from it, different metadata fields that need to be provided, and a form that needs to be readable by the receiving party. It’s complicated and hard to stay on top of.
Magistrate Judge Stein’s decision in this intellectual property dispute that we’re talking about today does a great job of analyzing the case law on one specific source of ESI — text messages. It’s clear, with as much time as I spend reading the case law each year, that text messages have emerged much more prominently over the last two years as a very critical source of ESI. If you’ll recall from listening to previous episodes, the Court in the Hunter’s Capital, LLC v. City of Seattle case found a conspiracy to destroy text messages that was sufficient for dispositive sanctions. In Maziar v. City of Atlanta, which was a 2024 case, the failure to preserve text messages led to the denial of summary judgment and significant costs imposed against the city for a failure to preserve three text messages. In Safelite Grp., Inc. v. Lockridge, which is a really recent episode here on Case of the Week, the defendant’s failure to preserve text messages led to prejudice and to an adverse inference instruction.
Text messages are key evidence now and they are how individuals communicate in our world, where we expect every communication to be responded to immediately. Magistrate Judge Stein’s decision here includes an excellent discussion on the challenges of dealing with text messages:
Text messages are an increasingly common source of relevant and often critical evidence in twenty-first century litigation. They do not, however, fit neatly into the paradigms for document discovery embodied by Rule 34 of the Federal Rules of Civil Procedure, which was crafted with different modes of communication in mind. Although Rule 34 was updated in 2006 to acknowledge expressly the existence of “electronically stored information” (ESI), as distinct from hard-copy “documents”, the dominant form of ESI at the time by far was electronic mail (“email”). Email at least retains a resemblance to conventional documents in that each email or email chain can be viewed as a single identifiable “document.”
With text messages this is not so clear. For discovery purposes, should each text message be viewed as its own standalone “document” or item of ESI? Or is the relevant “document” the entire chain of text messages between the custodian and the other individual or individuals on the chain—which could embrace hundreds or thousands of messages going back for years? Should the producing party be allowed to redact non-responsive texts and, if so, to what extent? Litigants, and courts, are still in the process of figuring out how to answer these questions.
The Court then turned to looking at the existing law on redacting text messages, specifically the Lubrizol Corp. v. IBM Corp. case, which we covered on an earlier episode of Case of the Week. That case involved the redaction of slacked messages considered akin to text messages by the judge there, and the Court in Lubrizol ultimately relied on the party’s agreement to produce 10 messages before and after the words that hit on search terms, but referencing the approach taken in the leading case on this issue in the Southern District of New York where this case was taking place, Al Thani v. Hanke from 2022.
Magistrate Judge Stein noted that some courts have suggested that a party must produce the entirety of a text message conversation that contains at least some responsive messages, and he notes that in Al Thani, District Judge Cronan applied, in the context of text messages, the general rule restricting a producing party from redacting unrelated, non-privileged information from an otherwise responsive document precluding redaction for non-responsive material. Finding no reason to go against the weight of authority in this District, which holds that parties may not unilaterally redact otherwise discoverable documents for reasons other than privilege, the Al Thani court ordered the defendant there to produce the unredacted text messages between herself and another defendant in their entirety. But what Judge Magistrate Judge Stein says next is the key takeaway from this decision in today’s episode.
Litigants are free to—and are well advised to—mitigate the risk of this uncertain legal regime by coming to their own agreement about how to address text messages in discovery. Rule 29(b) specifically affords parties flexibility to design their own, mutually agreed upon protocols for handling discovery.” That comment was designed to “give greater opportunities for litigants to agree upon modifications to the procedures governing discovery or to limitations upon discovery. Rule 29(b) not only permits, but “encourage[s]” counsel “to agree on less expensive and time-consuming methods to obtain information.”
According to the Court, in general, parties are better positioned than the court to customize a discovery protocol that suits the needs of the case, given their greater familiarity with the facts, the likely significance of text message evidence and the anticipated volume and costs of the discovery.
Now here, as I mentioned at the outset, the parties did negotiate an agreement on the production of text messages. It just didn’t go far enough. The parties agreed on three things regarding the text messages.
- That discovery in the case would encompass text messages. That’s a good thing.
- That agreed upon search terms would be used to identify potentially responsive text messages. Also a good thing, but really hard unless you’re actually looking at the data and figuring out what search terms the parties used in text message; and
- That any time a search term hit on a text message, counsel would review all messages in the same chain sent or received the same day, regardless of whether the initial text message that hit on the search term was responsive and relevant.
So, taking that last one into account, the parties did actually consider relevance as part of their agreement. They just didn’t talk specifically about redaction for relevance.
Both sides then produced responsive and relevant text messages in the form of same-day text chains, manifesting their mutual assent that a same-day chain represented the appropriate unit of production. But the parties did not explicitly address whether text deemed irrelevant or non-responsive would be redacted. Instead, the chains needed to be produced in their entirety or instead. Sorry, I missed that “or”, which is key here. So it’s that they did not explicitly address whether texts deemed irrelevant and non-responsive would be redacted or instead the chains needed to be produced in their entirety. Very important point. Defendants did not retract that text messages for relevance, but the plaint plaintiffs did. And this quote from Magistrate Judge Stein really sums up what I believe is the core issue when it comes to managing discovery:
One might think that, before producing hundreds of unredacted text chains in their entirety (in the case of Defendants), or before going to the trouble and expense of redacting tens of thousands of messages from more than a thousand text chains (in the case of Plaintiffs), counsel would have contacted its adversary to confirm that the other side was handling their production in the same manner. Such an inquiry would have flushed out the parties’ disparate understandings and led to additional negotiations and, perhaps, an agreement on the redaction issue.
Which, I’m going to add, would have precluded this motion to compel.
But neither counsel called or emailed (or texted) its adversary to engage in that discussion.
Essentially, the party’s dispute here asked the Court to fill in the gap on the parties’ agreement on text messages, something that the Court really was unwilling to do. The Court looked back at the Al Thani decision as the law of the district, and found that plaintiffs wholeheartedly ignored it. It also dismissed plaintiff’s attempts to distinguish Al Thani, finding that if the plaintiffs wanted to make redactions without defendant’s agreement, they needed to seek the Court’s permission to do so. Instead, having formed an agreement with defendants that resulted in defendant’s production of unredacted text messages, the plaintiffs were not free to decide on their own that redactions were appropriate.
Interestingly, Magistrate Judge Stein also looked at and applied the reasoning in the In re Actos Antitrust Litig. decision. In that case, the Court denied a party’s ability to produce the last-in-time email thread because the parties did not negotiate the use of email threading in their ESI protocol. The Court specifically noted, and we’ve talked about this on our email threading Case of the Week episodes, that by only providing the last-in-time email, the receiving party was precluded from having any metadata of the emails that were also in those email chains, and that that was not proper absent agreement between the parties. So you can see that sort of equating the two, but again separate sources of ESI that you need to think about, and email threading is one of the tools that you need to think about in how email is produced as a source of ESI. The Court also noted that the plaintiffs’ position on redacting their text messages was contrary to what the plaintiffs had done on email. The plaintiffs did not redact email messages for non-responsiveness and that is always going to be a red flag.
The Court did permit the parties to meet and confer on a process for identifying highly sensitive text messages to be marked “attorney’s eyes only”, and offered the parties multiple alternatives to handle that issue that included the following:
- they could amend the existing protective order to permit an AEO designation for text messages.
- they could arrange for opposing counsel to review the highly sensitive text messages in person at counsel’s office to confirm for themselves that messages were not relevant and allow redaction.
- they could permit redactions of particular categories of highly sensitive text messages, as we do with redaction in normal collections; or
- any other form of treatment that counsel agrees to that the Court adopts.
With that, the Court granted defendants’ motion to compel, subject to the meet and confer on the highly sensitive information, and ordered the plaintiffs to produce the text messages unredacted. There was no discussion of costs on this motion to compel. Oftentimes I find that in these sorts of situations, where there’s a legitimate dispute, the Court does not consider or award costs.
Takeaways
What are our takeaways from today’s decision, some of which we’ve already discussed?
Magistrate Judge Stein’s decision here states that it is black letter law in the Southern District of New York that, if you do not agree otherwise, a party may not redact for non-responsiveness in text messages or in emails. Keep that in your back pocket and use it to negotiate what you want. Text messages are a different beast. You need to consider the language of your agreements or a protocol, if you have one, on how you address text messages. Use the three things that the parties agreed to here and then also add redaction to that.
Now this next takeaway sums up most everything that we discuss here on Case of the Week and that I advocate with all of my clients. The complexity of each source of ESI means that you need to consider and plan for the identification, review, and production of each source differently. Here, the plaintiffs didn’t redact any non-responsive emails before producing them, but chose to redact non-responsive text messages without communicating with the other side. That’s never going to go over well. And that brings me to the second point. You have to be consistent in how you handle ESI across sources, or you have to agree that you’re going to handle things differently across sources, and that agreement should be in writing. Now, both of those come with a caveat, and it’s one that the Court points to here and we’ve seen over and over again in decisions. The Federal Rules of Civil Procedure and their state equivalents give you the tools to negotiate whatever works for the parties. And, if that doesn’t work, to come to the court to hash it out before you produce documents. Producing and then hoping for the best is a terrible strategy and it’s a sure ticket to a motion to compel, as we saw here and have seen so many times before on our Case of the Week broadcast. Text messages are tricky. People communicate much differently via text than they do in email.
One of the things the Court notes here in its decision is that typically email tends to follow a given topic. Now, that is a real 50-50 from my experience, but text messages are 100% jumping from topic to topic to topic all the time. I went back and looked at some of my text message strings with individuals just over the course of the last week, and the crazy jump from topic to topic to topic where search terms might hit on a chain for that particular day, as the parties agreed to here, would have included all kinds of non-responsive information that I wouldn’t have wanted to produce. So it’s really important for you to consider that and the best way to do it, the best way to handle that, is to look at the data. You cannot do ediscovery effectively without looking at the data. Tell the other side you need to see your client’s data first to identify the issues to discuss. Then review the data, identify those issues and make an agreement with the other side. Text messages are in every case that we handle at ESI Attorneys. Every single one. It’s an incredibly common form of communication because it appears right on the phone’s home screen and it’s often a much faster way to reach people, especially in the remote world that we live in.
Our job as discovery counsel is not to change how people communicate, but to understand how evidence is created, stored, sent, and received, and work with that evidence in the best and most cost-effective way to tell the story we want to tell. There is tremendous power in ESI to tell a story, to understand your story early, to be able to identify and mitigate risk in litigation, to get to the facts faster than we ever could with paper or pre the technologies that we have now to handle, organize and present ESI. But to do that effectively, you have to plan for it at the outset and go through each detail of each source of ESI to have the data to tell the story.
I, typically, at all of my discovery conferences — which are at the very initial stages of cases with clients — we say, what is the story that we want to tell and how are we going to tell that story? When you don’t know what story it is you want to tell, you start more broadly. When you know the story it is that you want to tell and what evidence is there, you can focus in. Either way, you want to keep continuously refining that story based on what you see in data and where you get data from.
Plan for each source of ESI, especially text messages, as we’ve seen here. Create a checklist of the questions you need to ask and the sources of ESI and nuances for each one. You can use one of ours in eDiscovery Assistant to get you started and tailor it to your needs and your matters. There is no one-size-fits-all in ediscovery planning. It needs to be tailored to the matters that you handle, the industry that your client is in, and the sources of ESI at issue.
Conclusion
That’s our Case of the Week for this week. Be sure to tune in for our next episode, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. You can also find back issues of Case of the Week on your favorite podcast platform and be sure to subscribe, as we’ll be adding new content apart from the Case of the Week segments coming this month. Have a great week!
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